“Voetstoots” is a common law principle that you, as a consumer, have most likely come across. However, what does it exactly entail, and does it still find application under the Consumer Protection Act?
..This right entitles the buyer to receive goods or property reasonably suited for the purpose which it was generally intended for..
Voetstoots Defined:
When something is sold “voetstoots”, it is sold “as is”. The term literally means sold “with a shove of the foot”.
When purchasing goods or property, there is an implied warranty that the item is sold free from any defects. A “voetstoots” clause in a sale agreement enables the seller to contract out of this implied warranty.
The seller absolves themselves from any liability in the event any latent or patent defect arise. A latent defect refers to a material defect, which is not visible after reasonable inspection of the item has taken place.
A patent defect, however, is a defect that is considered to be easily discoverable by a person upon a reasonable, and thorough inspection of the item. In terms of our common law, a seller will be liable to a buyer for a period of three (3) years in terms of any latent defects that arise after the defect is discovered.
Essentially, if a sale agreement includes this clause, the buyer agrees to purchase the item “as is” and gives up their right to claim against the seller if certain defects arise.
Consumer Protection Act Influence:
Common law exceptions to this clause do exist and enables the buyer to cancel the contract or claim for a reduction in the selling price if they can prove the following:
- that the item had a defect at the time of the sale;
- the seller was aware of the defect and neglected to disclose it;
- the seller deliberately concealed the defect from the buyer, as they were aware that the buyer would not have purchased the item or would have purchased it at a reduced price if they were made aware of same;
- the seller fraudulently materially misrepresented the item.
The onus to prove that the seller knew and concealed the defect or failed to disclose it, is on the buyer, as this clause was designed to protect the seller.
However, the Consumer Protection Act 68 of 2008 (the “CPA”) was enacted with the purpose to ‘promote and advance the social and economic welfare of consumers in South Africa. The CPA has an overreaching effect on the sale of goods and services in South Africa and outlines the key rights consumers have.
Legal Shifts and Implications:
The CPA has thus limited the application of this common law principle as a result of the operation of section 55 of the Act. Section 55 confers the consumer the Right to Safe, Good Quality Goods (excluding goods bought on auction).
This right entitles the buyer to receive goods or property reasonably suited for the purpose which it was generally intended for, of good quality, in a good working order, and free of any defects, usable and durable for a reasonable period.
This section further states that if a buyer informed the supplier of the intended use and particular purpose they wish to acquire the item for, and the supplier ordinarily offers to supply said goods, and act in a manner consistent with being knowledgeable about the use of those goods, the consumer has the right to expect that the goods purchased are reasonable suitable for that specific purpose as they have indicated.
..the CPA now provides the consumer protection against the purchase of any defective goods..
The Consumer Protection Act has therefore placed a limitation on “service providers and suppliers” from relying on the “voetstoots” clause to avoid liability for defects they are aware of. It seems that from the onset, the CPA appears to eradicate the significance of this common law clause.
However, this will only apply in cases where the transaction find application under the CPA. The CPA stipulates two different instances.
The first instance being that the Act will only find application in a transaction that are concluded in the ordinary course of the supplier’s business.
Therefore, a seller which ordinarily trades in the sale of specific items or property cannot rely on a “voetstoots” clause to indemnify themselves from liability for any defects found in the item sold.
Limitations and Protections:
The second instance being that where the buyer is an entity that has an annual turnover that exceeds the R2 million threshold, the Act will not find application to those transactions. The rationale being that entities of this nature are presumed to have the means to properly protect their interests when purchasing property or items.
Therefore, the CPA now provides the consumer protection against the purchase of any defective goods, albeit that this transaction was concluded in the ordinary course of the supplier’s business and finds application under the Act. The CPA has almost eradicated the “voetstoots” clause. The only way a seller can rely on this clause, is if they list every and all defects of the item before the sale is concluded, with the buyer signing and acknowledging these defects.
However, a specific, once-off, private sale will not be protected by the CPA and a seller in that instance can still rely on this clause to indemnify themselves. It is necessary to emphasise that this protection afforded by the CPA will not find application if you conclude a private sale.
Thus, even though transactions concluded within the ambit of the CPA will be protected against this, a private sale is not considered a transaction under the CPA, and buyers still need to be aware when concluding such transactions.
Conclusion:
Therefore, it is imperative that you, as a buyer concluding a private sale, are aware of the implications of agreeing to a “voetstoots” clause in a sale agreement.
If any uncertainty arises, do not hesitate to contact us for legal advice and assistance with your transaction.
Shaun-Michael Werth
Candidate Legal Practitioner
WHO ARE WE AT VHT
VHT Attorneys is a boutique law firm with a large vision. We provide innovative legal solutions with a renowned standard of integrity and confidentiality.
We help our clients:
- Remove Debt Review Status
- Commercial & Corporate Law
- Labour Law
- Dispute Resolution / Litigation
